Case Law Update – October

Re Permission to Arrange Covid-19 Vaccination [2022] EWFC 112

HHJ Rowe QC considered an applicant father’s contested application for an order permitting him to arrange Covid-19 vaccinations for his 2 daughters, aged 8 and 10. The judge rejected the mother’s case that the risk of the vaccinations outweighed the potential benefits for the children and ordered that the children should receive the vaccinations.

The parents separated in late 2019 but remined living with their girls in the same house through lockdown until late 2020. The girls were not at school over that period, and they were, therefore, exposed to the deterioration of their parents’ relationship without respite. One of the issues on which the parents were diametrically opposed was the issue of vaccination which in principle the father supported and in principle the mother opposed, both because of her general suspicion of their effectiveness and/or necessity and because of her parenting approach that arrangements for the girls should be discussed with and agreed by the girls themselves before they can happen. The parents did manage to agree that the children would be vaccinated with all the vaccinations listed in the NHS “catch up schedule”, the father later made a specific issue application as regards the Covid-19 vaccinations which was heard on 25/7/22. The judge set out the Court of Appeal’s guidance in relation to vaccinations generally in Re H (A Child: Parental Responsibility: Vaccination) [2020] EWCA Civ 664, as follows:

(i) It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for a child to be vaccinated in accordance with the Public Health Guidelines but that there is at present no legal requirement in this jurisdiction for a child to be vaccinated.

(ii) Although vaccinations are not compulsory, scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated, the current established medical view being that the routine vaccination of infants is in the best interests of those children and for the public good.

(iii) All the evidence presently available supports the Public Health England advice and guidance that unequivocally recommends a range of vaccinations as being in the best interests of both children and society as a whole.

(iv) The specific immunisations which are recommended for children by Public Health England are set out in the routine immunisation schedule which is found in the Green Book: Immunisation against infectious disease, published in 2013 and updated since.

(v) The evidence base with respect to MMR overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.

(vi) The clarity regarding the evidence base with respect to MMR and the other vaccinations that are habitually given should serve to bring to an end the approach whereby an order is made for the instruction of an expert report on the intrinsic safety and or efficacy of vaccinations as being necessary to assist the court to resolve the proceedings pursuant to FPR Part 25, save where a child has an unusual medical history and consideration is required as to whether the child’s own circumstances throw up any contra-indications.

(vii) Subject to any credible development in medical science or peer reviewed research to the opposite effect, the proper approach to be taken by a court where there is a disagreement as to whether the child should be vaccinated is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects.

(viii) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.

(ix) This approach to the medical issues does not act to narrow the broad scope of the welfare analysis that is engaged when considering the best interests of the child with respect to the question of vaccination.

In Re C (Looked After Child).(Covid-19 Vaccination) [2021] EWCA 2993 (which concerned the Covid-19 vaccination and winter flu vaccination for a 13-year-old)

Poole J determined that “the principles set out by the Court of Appeal in Re H apply equally to both Covid-19

vaccinations for 12-15 year olds and winter flu virus vaccinations for children in school years 7-11”. In that case the child was Gillick competent and consented to vaccinations – it was the parents who opposed the vaccines and thus the onus was on them to bring the matter to court [25].

In this case the judge noted that:

  1. Neither of the children has an unusual medical history;
  2. There is no well-evidenced medical contraindicator to Covid-19 vaccination specific to either of them;
  3. The mother made no application for permission to instruct an expert; and
  4. Neither party applied for a transfer of the case to the High Court.

The father’s case relied on the published guidance from government that the decision to offer the vaccine to younger children in the national programme is based on firm and well-researched evidence that this is in the children’s best interests. The father argued that given the relevant legal framework, the court should not investigate the science behind the government programme but approach the application on the basis that absent a new scientific development or peer reviewed research calling the efficacy or safety of the vaccination into question, vaccination of the children is in their best interests.

The mother’s counsel argued that the vaccine was a novel treatment which has been trialled over only a very short period. The vaccine was not within the programme of childhood vaccinations and was only an “offer” for younger children. The court should not accept that the government offer, which was not part of the government vaccination programme, and which was not evidenced as likely to benefit these children, was in their best interests. He argued that for these girls the balance is plainly against vaccination given the lack of positive benefit set against the known risks which, albeit statistically unlikely, are extremely serious should they arise. He drew the court’s attention in detail to the advice given by the JCVI up to and on 15/02/22, which the judge outlined in her judgment.

HHJ Rowe QC rejected the mother’s case as “hopeless”. She said: “There are no relevant medical contraindicators personal to these girls, and there is no credible development in medical science or peer reviewed research to the opposite effect”; and later in her judgement: “The JCVI would not have recommended the making of an offer of vaccination to all younger children aged 5-11, and the government would not have accepted that recommendation if either body doubted the efficacy and/or safety of the vaccine for any of that coterie of children..” The judge found that there was nothing specific to either of the girls which raised any risk factor connected to vaccination and that they were of an age where, in the absence of agreement between their parents, the court should bear the burden of making a decision because they were too young to make the decision themselves and because they were living with a carer who held adverse views about vaccination in general. On the basis of the current applicable law and the current science, her conclusion was that the father should have permission to arrange for the girls to receive the vaccine.


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